FILED
NOT FOR PUBLICATION FEB 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDI RUSH, No. 11-57214
Plaintiff - Appellant, D.C. No. 2:10-cv-08952-GW-PLA
v.
MEMORANDUM*
PIER 1 IMPORTS (U.S.) INC.;
STARBUCKS CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 4, 2015**
Pasadena California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Before: REINHARDT and GOULD, Circuit Judges, and MOTZ, Senior District
Judge.***
Sandi Rush appeals from the district court’s grant of summary judgment to
appellees on her claims under the Americans with Disabilities Act (ADA). We
have jurisdiction pursuant to 28 U.S.C. § 1291. “‘The district court is given broad
discretion in supervising the pretrial phase of litigation, and its decisions regarding
the preclusive effect of a pretrial order . . . will not be disturbed unless they
evidence a clear abuse of discretion.’” Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d
364, 369 (9th Cir.1985)). Similarly, “[t]he district court’s exclusion of evidence in
a summary judgment motion is reviewed for an abuse of discretion.” Orr v. Bank
of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
I.
The district court did not abuse its discretion in denying Rush leave to
amend her complaint. Even if Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir.
2011), effected a change in the pleading standard—a question we need not and do
not reach—Rush failed to demonstrate “good cause” to amend the complaint after
the deadline for doing so under the district court’s scheduling order had passed.
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2
See Johnson, 975 F.2d at 608–09. Oliver issued on August 17, 2011, yet Rush
waited until October 3, 2011 to file her motion to amend the complaint, which was
after the close of discovery and after both defendants had filed summary judgment
motions. It was within the district court’s discretion to conclude, as it did, that the
work involved in amending the complaint was minimal and did not justify such a
lengthy delay, and that the defendants would be prejudiced if the court vacated the
near-term trial date and reopened discovery. See id. at 609; see also Parker v. Joe
Lujan Enterprises, Inc., 848 F.2d 118, 121 (9th Cir. 1988). We also reject Rush’s
contention that she was entitled to amend her complaint to cure a jurisdictional
defect pursuant to 28 U.S.C. § 1653. Although the district court found one of
Rush’s claims moot, it ruled on the merits of her other claims and retained
jurisdiction over the case. Thus, there was no jurisdictional defect to cure via
amendment of the complaint.
II.
Rush also appeals the district court’s refusal to consider her expert report
pertaining to the alleged barriers at Starbucks. We need not decide whether the
district court erred in concluding that Rush had failed to authenticate the report,
because any such error was harmless. Cf. Las Vegas Sands, LLC v. Nehme, 632
F.3d 526, 533–34 (9th Cir. 2011) (holding district court should have considered
3
possibility of authentication under Fed. R. Evid. 904(b)(4) and applying harmless
error analysis). The excluded expert report did not raise a genuine issue of material
fact with respect to the ADA claims that were properly raised before the district
court.
AFFIRMED.
4